Rodger Citron: John Roberts' marked, and positive, influence on the Supreme Court
Every year, immediately after the Supreme Court term ends, the politics of law briefly becomes our national obsession. This year, inevitably, the pundits' focus was on just how far to the right the court had shifted as a result of the arrivals of Chief Justice John Roberts and Justice Samuel Alito. The verdict: Not that much, according to Linda Greenhouse of the New York Times. Charles Lane of the Washington Post concurred in this judgment. As did Dahlia Lithwick of Slate. According to this analysis, Roberts' first term can be seen as a disappointment to conservatives because the court achieved only a minimal shift to the political right.
A second disappointment to conservatives was Roberts' apparent failure to rein in the "activist" court. That judgment may be short-sighted. Although Supreme Court justices are a notoriously independent bunch, Roberts made substantial progress in bringing about a more harmonious court. More importantly, Roberts seemed to deliver on a promise made at his confirmation hearings: to be a more minimalist justice and to be guided by legal principles rather than political preferences.
John Roberts presented himself as a "legal process" justice at his confirmation hearings. Legal process was a theory propounded by a number of elite law professors in the 1950s in response to the activism of the Supreme Court under Chief Justice Earl Warren. Adherents hold that cases should be decided by "neutral principles" and that the more representative government actors (Congress, the president, and his representatives) should decide big policy questions. They believe in—indeed they emphasize—the distinction between law (which they see as an autonomous discipline governed by reason and principle) and politics (which they view as merely the expression of one's political preferences).
Roberts sounded these notes at his hearings, pledging to be "modest"—no more than "an umpire calling balls and strikes"—and to decide cases narrowly so as to promote consensus on the court. At a speech at Georgetown this spring he reiterated this preference for narrow, unanimous decisions. And the court under Roberts did enjoy an initial run of unanimity and modesty. As the term progressed, however, it splintered on a number of decisions, and on the last day of the term, refused to defer to the Bush administration's contention that there should be no judicial review of the administration's military commissions. Judicial supremacy, the commentators maintained, thus remains alive and well.
And as for Roberts? His earlier talk of humility and restraint were decried as a smoke screen for his conservative political preferences.
But not so fast. Because while the court's military commissions decision will likely be the defining case of Roberts' first term—and it casts a long shadow over the chief justice's goals of promoting institutional modesty and unanimity on the court—we should acknowledge that Roberts still made substantial progress in bringing about his goals.
Under Roberts' management, the court was a more harmonious institution than it has been in the past. According to statistics compiled by the Georgetown University Law Center's Supreme Court Institute, the court issued more decisions without dissents than in its previous two terms. The court also issued fewer 5-4 decisions, fewer dissenting opinions, and fewer separate opinions (concurrences and dissents) than in the previous term. Complete unanimity on the court may always be a mirage, but we're closer to consensus than we were during the last term of former Chief Justice William Rehnquist....
Read entire article at Slate
A second disappointment to conservatives was Roberts' apparent failure to rein in the "activist" court. That judgment may be short-sighted. Although Supreme Court justices are a notoriously independent bunch, Roberts made substantial progress in bringing about a more harmonious court. More importantly, Roberts seemed to deliver on a promise made at his confirmation hearings: to be a more minimalist justice and to be guided by legal principles rather than political preferences.
John Roberts presented himself as a "legal process" justice at his confirmation hearings. Legal process was a theory propounded by a number of elite law professors in the 1950s in response to the activism of the Supreme Court under Chief Justice Earl Warren. Adherents hold that cases should be decided by "neutral principles" and that the more representative government actors (Congress, the president, and his representatives) should decide big policy questions. They believe in—indeed they emphasize—the distinction between law (which they see as an autonomous discipline governed by reason and principle) and politics (which they view as merely the expression of one's political preferences).
Roberts sounded these notes at his hearings, pledging to be "modest"—no more than "an umpire calling balls and strikes"—and to decide cases narrowly so as to promote consensus on the court. At a speech at Georgetown this spring he reiterated this preference for narrow, unanimous decisions. And the court under Roberts did enjoy an initial run of unanimity and modesty. As the term progressed, however, it splintered on a number of decisions, and on the last day of the term, refused to defer to the Bush administration's contention that there should be no judicial review of the administration's military commissions. Judicial supremacy, the commentators maintained, thus remains alive and well.
And as for Roberts? His earlier talk of humility and restraint were decried as a smoke screen for his conservative political preferences.
But not so fast. Because while the court's military commissions decision will likely be the defining case of Roberts' first term—and it casts a long shadow over the chief justice's goals of promoting institutional modesty and unanimity on the court—we should acknowledge that Roberts still made substantial progress in bringing about his goals.
Under Roberts' management, the court was a more harmonious institution than it has been in the past. According to statistics compiled by the Georgetown University Law Center's Supreme Court Institute, the court issued more decisions without dissents than in its previous two terms. The court also issued fewer 5-4 decisions, fewer dissenting opinions, and fewer separate opinions (concurrences and dissents) than in the previous term. Complete unanimity on the court may always be a mirage, but we're closer to consensus than we were during the last term of former Chief Justice William Rehnquist....